Judges may hear
cases involving lawyers whose firms have donated to their campaigns, as long as
no individual lawyer involved in the case has crossed the statutory donation
threshold of $1,500, the Supreme Court Committee on Judicial Ethics Opinions said
yesterday.

In a formal
opinion that is substantively unchanged from the draft opinion sent out for
public comment in October, the panel said that the $1,500 threshold does not
apply to donations from a law firm.

Nor may
donations from attorneys in the same firm be aggregated in determining whether
the threshold has been crossed, the panel said, with a caveat:

“In either
circumstance, however, the judge must consider whether those aggregated or law
firm contributions might nevertheless cause a reasonable person to doubt the
judge’s impartiality for purposes of discretionary disqualification, pursuant
to [Code of Civil Procedure] section 170.1 subds.(a)(6)(A) and (a)(9)B).”

The code’s §
170.1(a)(9)(a) mandates judicial disqualification when a “lawyer in the
proceeding” has donated more than $1,500 to the judge’s campaign.

The committee
yesterday cited the legislative history, which cites two sources for the
legislation: Caperton v. A.T. Massey Coal Co., Inc.(2009) 556 U.S. 868, and the final report of the
California Judicial Council’s Commission for Impartial Courts.

The court inCapertonruled that due process was violated by
aWest Virginiahigh court justice’s refusal to recuse
himself from a case involving a $50 million damage award against a coal company,
whose chairman had spent $3 million in support of the justice’s election
campaign. The justice in that case cast the deciding vote overturning the
award, and the U.S. Supreme Court held that, under the “extreme facts” of the
case, “the probability of actual bias rises to an unconstitutional level.”

The ethics
committee noted, however, that the high court invited individual states to
adopt their own rules to vindicate the public interest, “of the highest order,”
in “judicial integrity.”

The Commission for Impartial Courts, chaired by Supreme
Court Justice Ming Chin, subsequently recommended the changes that became §
170.1(a)(9).

While
the legislation applies only to trial courts, new judicial ethics rules
extended mandatory disqualification to cases in which contributions to a Court
of Appeal justice exceed $1,500 or to a Supreme Court justice exceed $20,000.

Giving
the term “lawyer in the proceeding” its plain meaning, and applying it only
when a lawyer actually involved in the case has exceeded the donation
threshold, is consistent with the intent of the legislation, the committee
said.

The
committee emphasized, however, that there is still a duty to consider
discretionary recusal when disqualification is not mandated by the amount of an
individual donation.

“Indeed, the
objective standard in section 170.1, subdivision (a)(6)(iii) is an explicit
ground for disqualification and is intended to ensure public confidence in the
judiciary by requiring disqualification if a person aware of the facts would reasonably
entertain doubts concerning a judge's impartiality,” the committee explained. “…The
facts a person would need to be aware of under the objective standard are known
both to the judge and the public….The committee therefore concludes that
mandatory disqualification for individual attorney contributions over the
$1,500 threshold, together with discretionary disqualification for aggregated
and law firm contributions, sufficiently ensures the public trust in an
impartial and honorable judiciary.”

In
another opinion, also consistent with an October draft, the committee concluded
that when a judge is required to make ethical disclosures “on the record”
pursuant to canon 3E(2)(a) of the Code of Judicial Ethics, and there is no
court reporter or electronic recording of the proceedings, the judge “must
ensure that any disclosures become a part of the written record of
proceedings,” by having them documented through a minute order, official
clerk’s minutes, or a formal order.

The
disclosures must also be made to counsel, orally or by service of the written
order, the court said.

The CJEO is made
up of 12 members, including the chair, Third District Court of Appeal Justice
Ronald Robie, and the vice-chair, Fourth District Court of Appeal Justice
Douglas Miller. Los Angeles Superior Court judges Joanne O’Donnell and John S.
Wiley Jr. are among the members.